In December, the Ontario Court of Justice dismissed all charges against Joshua Boyle, the former Taliban prisoner accused of sexually assaulting and physically abusing his wife, Caitlan Coleman. Before the alleged assaults, Boyle and Coleman had been kidnapped and held hostage by Taliban militants in Afghanistan for over five years. Boyle and Coleman returned to Canada after being freed by Pakistani forces in October 2017. Less than two months later, Boyle was arrested and charged with more than a dozen criminal offences relating to events that occurred after the couple’s release.

Boyle’s trial was treated like a sensational event in the media, with the couple’s kidnapping and release making the case feel like an outlier. But we should focus on what makes Boyle’s trial similar to, not different from, more routine cases of intimate partner violence.

Among intimate partners, abuse is common, and it is overwhelmingly women who are assaulted and abused in their relationships. The criminal justice system has systemically failed to address the realities of intimate partner violence in Canada. Boyle was acquitted because of a lack of corroborating evidence for Coleman’s claims, but changes to criminal law are needed to ensure that complainants like Coleman, who might well have experienced a trauma reaction, are treated with greater compassion and respect.

“He said / she said”

One might think of Boyle’s trial as a classic “he said / she said” case of sexual assault, but the legal issues in the case were much more complex. There was little physical evidence like bruising or scarring to show Boyle had assaulted or abused Coleman. There were no independent eyewitnesses to the alleged events. This meant that the parties’ credibility was a key question for the court to decide.

Boyle claimed his wife has a longstanding mental illness and experienced violent fits. He claimed that the couple were members of the BDSM community and practiced rough but consensual sex as a matter of routine. For her part, Coleman claimed that she was assaulted and abused throughout the marriage, with Boyle hitting, biting, choking, and spanking her when she failed to live by a list of rules he had devised after they were released from captivity. Coleman has said she was more afraid of Boyle than her captors in Afghanistan.

Proof beyond a reasonable doubt is an extremely high standard. The judge showed his exasperation during the closing arguments phase of the trial, saying: “How am I supposed to decide what to believe and what not to believe?” He found that Boyle’s evidence lacked credibility, but he was concerned by Coleman’s memory lapses and unreliability as well, coupled with a lack of corroborating evidence for her claims. Ultimately, the judge dismissed all charges against Boyle.

The complexities of violence

Boyle’s acquittal should not surprise us. Coleman had particular vulnerabilities that are shared by complainants of intimate partner violence everywhere. The criminal justice system has struggled to recognize and accommodate these issues in case after case.

In her testimony, Coleman said she had trouble recalling traumatic events, suffered blackouts, and could have occasionally “invented and inserted” memories. She was diagnosed with post-traumatic stress disorder after her time as a hostage. This information is relevant because memory lapses should not necessarily be taken as evidence of a complainant’s lack of credibility. Courts should conduct a fact-specific analysis in every case. Research shows that intimate partner violence can elicit fear, terror, intense feelings of helplessness, and other trauma reactions in complainants. These feelings can affect complainants’ ability to remember and interpret events in the past and manage the stress of a criminal process.

Law enforcement has an incident-based understanding of intimate partner violence. Historically, this approach has silenced complainants’ narratives of ongoing abuse through coercive control.

Coleman’s testimony alleged that she endured a pattern of emotional and psychological manipulation by Boyle for a long time. There are similarities between Coleman’s allegations and what sociologists have termed “coercive control,” a cumulative, patterned process of domination by which intimate partners, primarily men, interweave physical and sexual violation with intimidation, sexual degradation, isolation, and other forms of control. Crucially, the signs of coercive control are often less visible than physical injuries like bruising or scarring. Law enforcement has an incident-based understanding of intimate partner violence. Historically, this approach has silenced complainants’ narratives of ongoing abuse through coercive control and underestimated the risks and severity of the harms at stake. Research suggests that coercive control is intrinsically harmful to complainants as well as a reliable predictor of physical violence.

A plea for reform

Criminalization can be a blunt and ineffective tool for remedying intimate partner violence and other compound problems of gender inequality. For complainants of intimate partner violence and sexual violence especially, the risks of secondary victimization and traumatization by the criminal justice system have been well-documented. Boyle’s trial should lead us to rethink and reform the criminal law in this area as part of a more comprehensive and therapeutic response to the problem.

Feminist anti-violence experts have sought to educate police officers, prosecutors and judges in more trauma-informed approaches to professional service delivery in recent years. Additionally, there is rich scientific literature in the field of therapeutic jurisprudence, which explores the extent to which criminal rules and procedures promote the psychological health of complainants and other stakeholders affected by them. These are extremely important developments that should be funded and supported. Legal responses to intimate partner violence must be strength-based and recovery-oriented to avoid trauma reactions and fully support complainants in coping with their trauma symptoms. Criminal reporting procedures, police-victim interviews and cross-examination techniques need to change in order to better reflect the neurobiology of trauma and promote complainants’ health and well-being. It should be possible for the criminal justice system to meet these important objectives without compromising the parties’ rights to a fair trial at the same time.

In the Criminal Code of Canada, there is no specific offence of intimate partner violence or coercive control. Last year, the House of Commons passed Bill C-75, a law that strengthened a range of criminal offences including aggravated assault and sexual assault that can be committed against intimate partners. Among other changes, the new law expands the legal definition of “intimate partner” to include both current and former partners; requires courts to consider prior convictions for intimate partner violence when determining whether to release the accused or impose bail conditions; and increases the maximum sentence allowable in cases involving repeated offenders of intimate partner violence. The impact of these changes should be closely monitored and evaluated to ensure that they are increasing access to justice for complainants.

Coercive control has been recognized in the United Kingdom through the introduction of a new standalone criminal offence. The impact of this change should be similarly monitored and evaluated to determine whether a corresponding change to the criminal law should be made in Canada. Preliminary assessments of the English legislation have identified problems that law enforcement has had in correctly reading the signs of coercive control and exercising its discretion to investigate and prosecute consensual intimate relationships deemed coercive or controlling without clear justification. This is consistent with problems that have been observed in this country, where law enforcement has similarly struggled to investigate and prosecute cases of intimate partner violence.

Specialized training of police officers, prosecutors and judges is needed to better identify the risks of coercive control throughout the criminal justice process. Clear and effective guidelines are needed to prevent the state from policing consensual sexual relationships, particularly in queer and BDSM communities, through vague and potentially overbroad definitions of crime.

Boyle’s trial might seem exceptional, but it is really anything but. Access to justice for complainants will remain out of reach until the complexities of intimate partner violence are more widely understood. The criminal law should be modernized in response to this reality.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Caitlan Coleman (right) leaves the Ottawa court house in Ottawa, Ontario on March 27, 2019. THE CANADIAN PRESS IMAGES/Lars Hagberg

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Daniel Del Gobbo is a Pierre Elliott Trudeau Scholar at the University of Toronto Faculty of Law. He writes and teaches about legal process, equality law, and access to justice in Canada, with a particular focus on the legal regulation of gender and sexuality.

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